Terms and Conditions

RightCrowd’s Presence Control & Social Distancing Monitoring Products

Terms and Conditions

 

PART A – PRODUCTS AND SOFTWARE LICENCE

 

1. PRODUCTS

  • RightCrowd agrees to provide to the Customer its presence control social distancing monitoring products, as identified in the relevant invoice under which those software and hardware products are supplied to the Customer (Products), in accordance with these terms and conditions (Terms and Conditions).
  • 1.2 Title and Risk
    • Legal and equitable title in the Products remains with RightCrowd until it has received payment in full for all monies owed to RightCrowd in relation to those Products in accordance with the Terms and Conditions.
    • Risk in the Products transfers to the Customer upon delivery by RightCrowd of those Products in accordance with the Terms and Conditions.
    • Delivery of the Products and Software will be on a DAP basis (as defined in Incoterms 2010).
  • 1.3 Product Warranties

RightCrowd warrants that each Product:

  • will perform in all material respects in accordance with RightCrowd’s published specifications for that Product; and
  • in the case of hardware Products, the hardware Products delivered by RightCrowd to the Customer will be free from material defects at the time of delivery.

2. Software licence

  • 2.1 Grant of License

RightCrowd grants a non-exclusive, non-transferable license to the Customer to use the software Products (Software) supplied to it by RightCrowd under these Terms and Conditions (Software License).

  • 2.2 Terms of use
    • The Customer must:
      • only use the Software license for the Customer’s internal business purposes;
      • sign any license or support documents reasonably requested by RightCrowd; and
      • comply with all reasonable directions issued by RightCrowd regarding use of the Software License.
    • The Customer must not and must not allow any person other than RightCrowd to:
      • copy the Software (except to make copies of for back-up, testing, development training, and product and disaster recovery purposes, which must bear the same copyright notice as the original);
      • alter, modify, tamper with, reverse engineer or attempt to reverse engineer, disassemble or decompile the Software, or attempt to create or re-create the source code;
      • sub-license the Software;
      • use the Software license to develop other software or products;
      • remove, obscure or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Software;
      • engage in or permit any unauthorised use; or
      • export or authorize the export of any of the Software (or any other data, information or other items provided by RightCrowd) in violation of any laws.
  • 2.3 Software License Warranties

RightCrowd warrants that the Software does not infringe upon the Intellectual Property Rights of any third party.

3. SAAS Products

  • 3.1 Application of this clause

This clause 3 applies to all Software provided as a cloud-based Product (SaaS Products), and prevails over any inconsistent clause in the Terms and Conditions in respect to the Software.

  • 3.2 Third Party servers

The Customer acknowledges and agrees that:

  • the server for the operation and support of the SaaS Products will not be hosted or owned by RightCrowd;
  • RightCrowd makes no representation, express or implied, as to any matter whatsoever in respect to any third party server, including in respect to its performance or availability; and
  • by agreeing to the Terms and Conditions, the Customer agrees to be bound by any terms and conditions for the use of the applicable third party server provider, as notified by RightCrowd to the Customer from time to time.
  • 3.3 Customer responsibilities

The Customer is responsible for obtaining and maintaining all equipment, computer hardware and software (including server access) and all telecommunications services to access and use the SaaS Products and will ensure that all such equipment and services comply with the technical specifications provided by RightCrowd, if any.

  • 3.4 Updates

RightCrowd reserves the right to make such amendments or modifications to the SaaS Products for the purposes of maintaining or improving the quality, efficacy, and security of the SaaS Products, as determined by RightCrowd in its sole discretion from time to time.

  • 3.5 Customer acknowledgements

The Customer acknowledges that:

  • the completion of any modifications or upgrades contemplated under clause 4, may result in periodic scheduled interruptions to the availability and performance of SaaS Products;
  • due to factors out of the control of RightCrowd (such as server updates), unscheduled interruptions to the availability of the SaaS Products may occur;
  • the performance of the SaaS Products is dependent on the Customer’s internet connection and may be affected by such external factors as speed of connection and infrastructure bandwidth from the Customer’s equipment to the applicable server; and
  • RightCrowd takes no responsibility for any delay, malfunction, non-performance or other degradation of the SaaS Products caused by or resulting from an alternation, modification or amendment of the SaaS Products required by the Customer.

 

PART B – SUPPORT AND MAINTENANCE

 

4. SUPPORT AND MAINTENANCE

  • Standard support
    • RightCrowd will provide the Support and Maintenance in accordance with its standard support practices for the Products (as further defined in RightCrowd’s Product proposal and at: https://www.rightcrowd.com/support-services/).
    • The following tasks and services are not included in Support and Maintenance and will, if agreed by RightCrowd, will be provided to the Customer on the basis agreed in any relevant proposal or statement of work, or otherwise on a time and materials basis: installation of any Software; user training; travel and accommodation for a Customer visit; installation of any update or release; interaction with software or hardware not provided by RightCrowd; any maintenance of customised Software provided by RightCrowd; any software or hardware problems resulting from any third party software or hardware failure; and any extraordinary expenses communicated to the Customer in advance.
  • Customer Obligations

The Customer is solely liable for any compatibility problems between the Software and any other application or other software programs not covered under the Terms and Conditions. Except in respect of SaaS Products, the Customer, at its expense (except where otherwise set out in RightCrowd’s proposal for the supply made under these Terms and Conditions), will:

  • install and implement all minor updates provided by RightCrowd to the Customer;
  • provide RightCrowd access to the Software as required to perform Support and Maintenance; and
  • provide RightCrowd with such assistance, information, services and facilities as may be requested by RightCrowd to perform Support and Maintenance under the Terms and Conditions.

5. SUPPORT AND MAINTENANCE WARRANTIES

RightCrowd warrants to the Customer that the Support and Maintenance will be provided to the Customer with reasonable care and skill and in a good and workmanlike manner.

 

PART C – GENERAL

6. PAYMENT AND INVOICING

  • 6.1 Payment and due dates
    • Pricing and payment terms and conditions will apply to the Customer are set out in the relevant invoice.
    • If RightCrowd agrees to provide additional work for the Customer which is not specified in RightCrowd’s proposal or statement of work, then unless agreed otherwise the Customer will pay RightCrowd on a time and material basis, as set out in the invoice sent by RightCrowd to the Customer.
    • Annual subscription and maintenance charges will increase after the stated term by the higher of the national inflation rate (as determined by the IMF), or 2%.
    • The Customer must pay RightCrowd in accordance with the payment terms stated on the invoice or if the invoice does not specify payment terms, within 30 days of the invoice date.
    • Unless otherwise specified in RightCrowd’s proposal or statement of work, the Customer will:
      • reimburse RightCrowd for all reasonable expenses incurred by RightCrowd in the delivery of the Products and Software, including travel and accommodation expenses and communications charges; and
      • reimburse RightCrowd for any shipping and other related costs incurred in delivering the Products and Software to the Customer.
    • 6.2 Overdue amounts
      • Where the Customer does not pay the amounts due to RightCrowd by the relevant due dates, RightCrowd may charge interest calculated daily on any overdue amounts due at the rate of 12% per annum.
      • Where RightCrowd takes action to collect any amount not paid when due, the Customer must pay or reimburse RightCrowd’s costs of collection (including, without limitation, any legal fees and court costs on a full indemnity basis) upon demand.

7. INTELLECTUAL PROPERTY RIGHTS

  • All Intellectual Property Rights in the Products and Software remain the property of RightCrowd or its suppliers and any Intellectual Property Rights created by RightCrowd in the delivery of the Software vest upon their creation in RightCrowd. The Customer must do all things and sign all documents necessary to assign any Intellectual Property Rights under this clause to RightCrowd.
  • The Customer acknowledges that:
    • it does not have any rights in the Intellectual Property in or associated with the Products other than pursuant to these Terms and Conditions;
    • RightCrowd has the sole right, in its absolute discretion, to bring proceedings or take any action in relation to any infringement or threatened infringement of any Intellectual Property rights; and
    • if RightCrowd takes any action in respect of its Intellectual Property rights, the Customer must provide, at its own cost, all assistance reasonably required by RightCrowd in relation to that action.

8. INDEMNITIES AND LIMITATION OF LIABILITY

  • 8.1 Customer indemnity to RightCrowd

Except to the extent that the Damages result from a negligent act or omission of RightCrowd  or any of its employees, contractors, representatives or agents  (Personnel), the Customer indemnifies RightCrowd and its Personnel against all loss, claims and damages that RightCrowd or any of its Personnel may sustain or incur as a result, whether directly or indirectly, of:

  • any breach by the Customer of the Terms and Conditions;
  • any negligent, unlawful or willful act or omission of the Customer or its personnel in connection with the Terms and Conditions; and
  • any action or claim by a third party arising in respect of the activities under and contemplated by the Terms and Conditions.
  • 8.2 RightCrowd Indemnity to Customer

RightCrowd indemnifies, and will keep indemnified, the Customer against any Claims or Damages suffered by the Customer, arising from:

  • the negligent or deliberate acts or omissions of RightCrowd; or
  • any action or claim by a third party that the Software infringes the Intellectual Property Rights of that third p
  • 8.3 Limitation

RightCrowd:

  • will not be liable for any consequential loss or damage (including loss of income, profits or business, loss of opportunity or damage to goodwill or reputation) arising out of any conduct related to the Terms and Condition;
  • makes no express warranties or representations other than those expressly set out in the Terms and Conditions;
  • excludes all warranties, conditions and terms implied by statute, general law, international convention or custom, except for any implied condition or warranty, the exclusion of which would contravene any statute or cause this clause to be void (Non-excludable Warranty); and
  • limits its liability to Customer for breach of any Non-excludable Warranty at RightCrowd’s option to replacing or correcting any Goods or providing Services again.
  • 8.4 Exclusions
    • RightCrowd’s warranties under clauses 1.3, 2.3 and 5 do not apply to any non-compliance resulting from any:
      • use of the Products not in accordance with the Terms and Conditions;
      • modification, damage, misuse or other action of Customer or any third party;
      • combination with any goods, services or other items provided by Customer or any third party;
      • accidents, acts of God, lightning, strikes, riots, floods, terrorism, acts of war, alteration, misuse, tampering or abuse, adjustments, repairs or maintenance not done by RightCrowd, or from parts accessories, attachments or other devices or hardware not furnished by RightCrowd; or
      • any failure of Customer to comply with the Terms and Conditions.
    • The Customer accepts that any customized technology solution is likely to contain minor errors or bugs that do not affect the overall functionality of the solution and that RightCrowd does not warrant that any Products will be error-
  • 8.5 Remedies

RightCrowd’s sole obligation and Customer’s sole remedy for failure of any Products to comply with the warranties under clauses 1.3, 2.3, and 5  will be for RightCrowd to resupply the relevant Services or Support and Maintenance or to use commercially reasonable efforts to correct any defects in, or replace, the Product.

  • 8.6 Maximum Liability

RightCrowd’s total liability to the Customer in respect of any Damages suffered or incurred by the Customer under the Terms and Conditions is limited to the total amount actually paid by the Customer to RightCrowd under the Terms and Conditions.

9. PRIVACY LAWS

During the Term of the Terms and Conditions , each Party must comply in all respects with all data protection laws applicable to them or to any information that they hold or gain access to in the performance of the Terms and Conditions.

10.  CONFIDENTIALITY

  • 10. 1 Obligation to maintain confidentiality
    • Each party must:
      • keep all Confidential Information of the other party strictly confidential; and
      • not disclose any of the other party’s Confidential Information to any third party except with the written consent of the party or as permitted by law.
    • Each party must ensure that its respective officers, employees, agents and auditors comply with clause 10.1(a).
  • 10. 2 Confidentiality obligations to survive termination

The rights and obligations of the parties under this clause 10 will survive termination of the Terms and Conditions.

11. TERMINATION AND CONSEQUENCES OF TERMINATION

  • 11.1 Termination

In addition to any other express rights to terminate set out in the Terms and Conditions, either party may terminate the Terms and Conditions immediately by notice if:

  • an Insolvency Event occurs; or
  • the other party materially breaches the Terms and Conditions and that breach:
    • is not capable of being remedied; or
    • is capable of being remedied but the other party fails to remedy the breach adequately or compensate the non-defaulting party in respect of that breach within 30 days after receiving notice requiring it to do so.
  • 11. 2 Consequences on termination

Upon termination of the Terms and Conditions the Software License will be terminated and RightCrowd will immediately terminate the Customer’s connection to any SaaS Products.

  • 11. 3 Accrued rights

Termination of the Terms and Conditions does not affect any accrued rights or remedies of either party.

12. TAX

  • 12. 1 Sales Tax

All amounts expressed in any proposal, statement of work or invoice are exclusive of any value-added, sales or supply tax payable as a result of the supply of goods or services under the Terms and Conditions, unless expressly stated to the contrary.

  • 12. 2 Withholding Tax

If the Customer is obliged to make a deduction in respect of tax from any payment due to RightCrowd under the Terms and Conditions, it shall pay RightCrowd an additional amount so that RightCrowd receives a net amount (after allowance for any further deduction and any Tax on the additional amount) equal to the amount it would have received if no deduction had been made.

 

13.  MISCELLANEOUS

  • 13. 1  RightCrowd may modify these Terms and Conditions from time to time, by providing notice to the Customer or by posting the modified Terms and Conditions on RightCrowd’s website. Together with notice, RightCrowd will specify the effective date of the modifications.
  • 13. 2  All notices, requests, demands, consents, approvals, offers, agreements or other communications (Notices) given by a party under or in connection with the Terms and Conditions must be in writing and in English, and hand delivered or transmitted by email to the recipient’s address for Notices (as varied by any notice).
  • 13.3  Except as otherwise provided, the Terms and Conditions will be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
  • 13.4  Nothing in the Terms and Conditions constitutes any relationship of employer and employee, principal and agent or partnership between RightCrowd and Customer or RightCrowd and any of Customer’s personnel.
  • 13.5  Part or all of a provision of this the Terms and Conditions that is illegal or unenforceable may be severed and the remaining parts of the provision or provisions of the Terms and Conditions continue in force.
  • 13.6  Neither party may assign, subcontract, novate or otherwise transfer any right or obligation arising out of the Terms and Conditions without the prior written consent of the other.
  • 13.7  This Agreement is for the benefit of, and will be enforceable by, the parties only. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a party by any third party claiming as a third party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.
  • 13.8  The Terms and Conditions are governed by the laws applicable in the State of Queensland, Australia, and each party submits to the non-exclusive jurisdiction of the courts of this